This article was first published in Slate. It is reprinted with permission. Slate is a trademark of Microsoft Corporation, copyright 1997. All rights reserved.
No one—at least no one in elite policy-wonk circles—is a bigger fan of incarcerating known, adjudicated adult and juvenile criminals than I am. No one has written more over the years about the cost-effectiveness of incarceration as measured both in terms of its crime-reduction value and in terms of doing justice. Still, when it comes to the search for rational, workable crime policies, it’s time to admit that the brain-dead law-and-order right is no better than the soft-in-the-head anti-incarceration left. More and more conservatives now favor abolishing parole, sharply curtailing probation, imprisoning every adult felon for his or her entire term, and warehousing juvenile offenders in adult jails. The prudent response, however, is not to abolish probation and parole, but to reinvent them.
First, let’s get crystal clear on the grim facts about crime, prisons, probation, and parole. Be giddy about recent drops in national crime rates if you wish, but each year Americans still suffer some 40 million criminal victimizations; about a quarter of these are violent crimes. Only about 1 in 100 crimes actually results in anyone getting caught, convicted, and sentenced to prison. Most felony defendants are repeat offenders; yet most felony defendants are sentenced not to prison but to probation.
Likewise, a half-dozen studies prove beyond a reasonable doubt what every veteran policeman knows: most prisoners are not petty, nonviolent thieves or mere first-time, low-level drug offenders. Yet most of these hardened criminals are still paroled well before they have served out their latest sentence behind bars. On any given day in America, there are three convicted adult criminals out on probation or parole for every one in prison—and many of these are indistinguishable (in terms of their violent and repeat criminal histories) from those who remain in prison. As for juvenile offenders, between 1989 and 1993 the number of adjudicated juvenile cases that resulted in probation rose by 17 percent. The number of probation cases involving a “person offense”—such as homicide, rape, robbery, or assault—soared by 45 percent.
Literally dozens of careful studies document that probation and parole are, to put it mildly, failing to protect the public. Nearly half of all state prisoners in 1991 had committed their latest crimes while out on probation or parole. While formally “under supervision” in the community, their “violations” included more than 13,000 murders, some 39,000 robberies, and tens of thousands of other crimes. More than a quarter of all felons charged with gun crimes in 1992 were out on probation and parole. Here, too, what’s true for the revolving-door adult system is even more true for the no-fault juvenile system. In many cities, for example, most cases involving violent older teen thugs who get referred to adult court result in probation. Kids plea bargain too.
Getting What We Pay For
Why are the adult and juvenile probation systems so poor, and what, realistically, can be done to improve them—soon?
A big part of the answer is that we spend next to nothing on the systems, and get about what we pay for. Take adult probation. Joan R. Petersilia, former director of RAND’s criminal-justice research program, has calculated that we currently spend about $200 per probationer for supervision. “It is no wonder,” she notes, “that recidivism rates are so high.” Likewise, Patrick A. Langan, a statistician with the U.S. Justice Department, has found that more than 90 percent of probationers are supposed to get substance abuse counseling, pay victim restitution, or meet other requirements. But about half do not comply with the terms of their probation. Probation sanctions, he concludes, “are not rigorously enforced.”
But how could they be properly supervised by overworked, underpaid probation officers with scores of cases to manage? As Petersilia argues, even probationers who are categorized as high-risk offenders receive little direct, face-to-face oversight. If “probationers are growing in number and are increasingly more serious offenders,” she advises, “then they are in need of more supervision, not less. But less is exactly what they have been getting over the past decade.”
Ditto for juvenile probation. Over half of street-level juvenile probation officers earn less than $30,000 a year. In big cities, the probation caseload of serious and violent juvenile cases has increased rapidly. In a national survey, probation officers admitted that their average urban caseloads were at least 25 percent higher than they should be.
To reinvent probation, we will need to reinvest in it. More money, more agents, and closer supervision are just the first phase. Equally important is the type of creative and critical thinking represented by Boston’s probation chief Ronald P. Corbett. Among other innovations, Corbett has teamed local probation officers with local police officers. Patrolling the streets together, they have cut crime. Corbett has also got probation officers to work with inner-city clergy on a wide range of crime control and prevention initiatives.
In Philadelphia, the district attorney’s office has developed a no-nonsense program in which volunteers from the neighborhoods where the juveniles committed their crimes hear the cases, set terms, and monitor compliance. Run for the district attorney’s office by veteran probation officer Mike Cleary, the citywide program boasts an 80 percent success rate, costs little to administer, and holds kids (including hundreds of juvenile felony offenders) accountable.
“The value of Philly’s program,” observes former New Jersey Superior Court Judge Daniel R. Coburn, “is that it separates the minnows from the sharks, then holds the minnows accountable and hence less likely to become sharks, let alone become the predatory Great Whites we must incarcerate.” He should know. Coburn pioneered two major and highly successful programs in New Jersey. One is the state’s Enforcement Court, which goes after people who remain on probation because they failed to pay fines and restitution, collects the money, restores the trust of crime victims, and brings literally millions of dollars into state coffers that can be used to beef up other justice programs. The other is the Sheriffs Labor Assistance Program (SLAP), which puts low-level criminals to work cleaning up parks, painting public buildings, helping out in nursing homes, and more. “Fail to do exactly what you’re required to do on SLAP,” Coburn declares, “and you get slam—as in, see you in jail for sure.”
Hope for Parole Too?
Admittedly, parole is a tougher reinvention nut to crack. In the late 1980s, I myself had expressed hopes that intensive-supervision parole programs could protect the public and its purse. But the best studies of intensive-supervision programs for high-risk parolees soon found that the programs cut neither recidivism nor costs. So for the last several years I have argued in favor of some types of “three strikes and you’re out” laws. And I continue to strongly favor a no-parole policy for some categories of violent and chronic criminals.
But the most interesting parole-reinvention idea I’ve encountered to date comes from Martin Horn, formerly head of New York State’s parole authority and now commissioner of prisons in Pennsylvania. As Horn argues, in most cases there is relatively little that parole agents can do to keep an offender who is determined to commit new crimes from committing them. The flip side is that parolees who want to go straight often can make it if they are literate, civil, and can stay off drugs, remain sober, and get a job. But parole agents often waste time chasing the bad guys rather than helping the good. And in many states, the laws perversely limit a parole agent’s discretion. For example, I’ve heard many agents complain of having to revoke the parole of guys who failed a drug test but who were not, in the agent’s best judgment, doing anything more than getting high. As one agent confided, “A parolee of mine is ok and is looking for a job. He pees in a bottle and comes up dirty, and I have to send him back inside. But a real predator I know is using, selling, and almost certainly doing other crimes. He stays on the streets unless I catch him red-handed—and I won’t. It’s insane.”
Horn’s radical notion is to reinvent parole on the basis of a “personal responsibility” model. A released prisoner would be given the equivalent of a parole services voucher. For a fixed period of time—say, two years—he can use the voucher to seek education, job training, drug treatment, or other services from state-selected providers. If he wants to help himself, he can. If not, he’s on his own. Do a new crime during this period—bite the hand that is offering you a way to help yourself—and you do the time for the crime, plus a year or two.
It’s time to get behind serious efforts to reinvent probation and parole, and time to debate fresh ideas. After all, we are not going to put every convicted adult and juvenile felon behind bars and keep him or her there—nor should we.
President-elect Bolsonaro has embraced tough-on-crime measures that egregiously violate basic human rights and eviscerate the rule of law. Responding to Brazil’s 63,880 homicides in 2017, Bolsonaro calls for increasing protection for police officers who kill alleged criminals and arming citizens. He calls for further militarizing urban policing, reducing the age of criminal liability from 18 to 16, reinstating the death penalty, authorizing torture in interrogations and imprisoning more people... Brazil’s police are already notorious for being one of the world’s deadliest in the use of force. In many favelas, Brazil’s retired and current police officers operate illegal militias that extort and control local communities, murdering those who oppose them and engaging in warfare with Brazil’s highly-violent gangs and in social cleansing. Bolsonaro is simply threatening to turn the rest of the police into state-sanctioned thugs.